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Resolution adopted by the General Assembly on 19 December 2011

[on the report of the Third Committee (A/66/457)]

66/138. Optional Protocol to the Convention on the Rights of the Child on a communications procedure

 The General Assembly,

 Taking note with appreciation of the adoption by the Human Rights Council, through its resolution 17/18 of 17 June 2011, of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure,

 1. Adopts the Optional Protocol to the Convention on the Rights of the Child on a communications procedure as contained in the annex to the present  resolution;

 2. Recommends that the Optional Protocol be opened for signature at a signing ceremony to be held in 2012, and requests the Secretary-General and the United Nations High Commissioner for Human Rights to provide the necessary assistance.

89th plenary meeting

19 December 2011

 Annex

Optional Protocol to the Convention on the Rights of the Child on a communications procedure

  The States parties to the present Protocol,

 Considering that, in accordance with the principles proclaimed in the Charter  of the United Nations, the recognition of the inherent dignity and the equal and  inalienable rights of all members of the human family is the foundation of freedom,  justice and peace in the world,

 Noting that the States parties to the Convention on the Rights of the Child  (hereinafter referred to as “the Convention”) recognize the rights set forth in it to

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See Official Records of the General Assembly, Sixty-sixth Session, Supplement No. 53 (A/66/53), chap. I. A/RES/66/138

each child within their jurisdiction without discrimination of any kind, irrespective

of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language,

religion, political or other opinion, national, ethnic or social origin, property,

disability, birth or other status,

 Reaffirming the universality, indivisibility, interdependence and interrelatedness  of all human rights and fundamental freedoms,

 Reaffirming also the status of the child as a subject of rights and as a human  being with dignity and with evolving capacities,

 Recognizing that children’s special and dependent status may create real  difficulties for them in pursuing remedies for violations of their rights,

 Considering that the present Protocol will reinforce and complement national  and regional mechanisms allowing children to submit complaints for violations of

their rights,

 Recognizing that the best interests of the child should be a primary  consideration to be respected in pursuing remedies for violations of the rights of the  child, and that such remedies should take into account the need for child-sensitive  procedures at all levels,

 Encouraging States parties to develop appropriate national mechanisms to  enable a child whose rights have been violated to have access to effective remedies  at the domestic level,

 Recalling the important role that national human rights institutions and other  relevant specialized institutions, mandated to promote and protect the rights of the  child, can play in this regard,

 Considering that, in order to reinforce and complement such national  mechanisms and to further enhance the implementation of the Convention and,  where applicable, the Optional Protocols thereto on the sale of children, child  prostitution and child pornography and on the involvement of children in armed  conflict, it would be appropriate to enable the Committee on the Rights of the Child  (hereinafter referred to as “the Committee”) to carry out the functions provided for  in the present Protocol,

 Have agreed as follows:

Part I

General provisions

Article 1

Competence of the Committee on the Rights of the Child

1. A State party to the present Protocol recognizes the competence of the  Committee as provided for by the present Protocol.

2. The Committee shall not exercise its competence regarding a State party to the  present Protocol on matters concerning violations of rights set forth in an instrument  to which that State is not a party.

3. No communication shall be received by the Committee if it concerns a State  that is not a party to the present Protocol.

Article 2

General principles guiding the functions of the Committee

 In fulfilling the functions conferred on it by the present Protocol, the  Committee shall be guided by the principle of the best interests of the child. It shall  also have regard for the rights and views of the child, the views of the child being  given due weight in accordance with the age and maturity of the child.

Article 3

Rules of procedure

1. The Committee shall adopt rules of procedure to be followed when exercising  the functions conferred on it by the present Protocol. In doing so, it shall have  regard, in particular, for article 2 of the present Protocol in order to guarantee  child-sensitive procedures.

2. The Committee shall include in its rules of procedure safeguards to prevent the  manipulation of the child by those acting on his or her behalf and may decline to  examine any  ommunication that it considers not to be in the child’s best interests.

Article 4

Protection measures

1. A State party shall take all appropriate steps to ensure that individuals under  its jurisdiction are not subjected to any human rights violation, ill-treatment or  intimidation as a consequence of communications or cooperation with the  Committee pursuant to the present Protocol.

2. The identity of any individual or group of individuals concerned shall not be  revealed publicly without their express consent.

 Part II

Communications procedure

Article 5

Individual communications

1. Communications may be submitted by or on behalf of an individual or group of individuals, within the jurisdiction of a State party, claiming to be victims of a  violation by that State party of any of the rights set forth in any of the following  instruments to which that State is a party:

 (a) The Convention;

 (b) The Optional Protocol to the Convention on the sale of children, child  prostitution and child pornography;

 (c) The Optional Protocol to the Convention on the involvement of children  in armed conflict.

2. Where a communication is submitted on behalf of an individual or group of  individuals, this shall be with their consent unless the author can justify acting on  their behalf without such consent.

Article 6

Interim measures

1. At any time after the receipt of a communication and before a determination  on the merits has been reached, the Committee may transmit to the State party  concerned for its urgent consideration a request that the State party take such  interim measures as may be necessary in exceptional circumstances to avoid  possible irreparable damage to the victim or victims of the alleged violations.

2. Where the Committee exercises its discretion under paragraph 1 of the present  article, this does not imply a determination on admissibility or on the merits of the  communication.

Article 7

Admissibility

 The Committee shall consider a communication inadmissible when:

 (a) The communication is anonymous;

 (b) The communication is not in writing;

 (c) The communication constitutes an abuse of the right of submission of  such communications or is incompatible with the provisions of the Convention  and/or the Optional Protocols thereto;

 (d) The same matter has already been examined by the Committee or has  been or is being examined under another procedure of international investigation or  settlement;

 (e) All available domestic remedies have not been exhausted. This shall not  be the rule where the application of the remedies is unreasonably prolonged or  unlikely to bring effective relief;

 (f) The communication is manifestly ill-founded or not sufficiently  substantiated;

 (g) The facts that are the subject of the communication occurred prior to the  entry into force of the present Protocol for the State party concerned, unless those  facts continued after that date;

 (h) The communication is not submitted within one year after the exhaustion  of domestic remedies, except in cases where the author can demonstrate that it had  not been possible to submit the communication within that time limit.

Article 8

Transmission of the communication

1. Unless the Committee considers a communication inadmissible without  reference to the State party concerned, the Committee shall bring any  communication submitted to it under the present Protocol confidentially to the  attention of the State party concerned as soon as possible.

2. The State party shall submit to the Committee written explanations or  statements clarifying the matter and the remedy, if any, that it may have provided.  The State party shall submit its response as soon as possible and within six months.

Article 9

Friendly settlement

1. The Committee shall make available its good offices to the parties concerned  with a view to reaching a friendly settlement of the matter on the basis of respect for  the obligations set forth in the Convention and/or the Optional Protocols thereto.

2. An agreement on a friendly settlement reached under the auspices of the  Committee closes consideration of the communication under the present Protocol.

Article 10

Consideration of communications

1. The Committee shall consider communications received under the present  Protocol as quickly as possible, in the light of all documentation submitted to it,  provided that this documentation is transmitted to the parties concerned.

2. The Committee shall hold closed meetings when examining communications  received under the present Protocol.

3. Where the Committee has requested interim measures, it shall expedite the  consideration of the communication.

4. When examining communications alleging violations of economic, social or  cultural rights, the Committee shall consider the reasonableness of the steps taken  by the State party in accordance with article 4 of the Convention. In doing so, the  Committee shall bear in mind that the State party may adopt a range of possible  policy measures for the implementation of the economic, social and cultural rights  in the Convention.

5. After examining a communication, the Committee shall, without delay,  transmit its views on the communication, together with its recommendations, if any,  to the parties concerned.

Article 11

Follow-up

1. The State party shall give due consideration to the views of the Committee,  together with its recommendations, if any, and shall submit to the Committee a  written response, including information on any action taken and envisaged in the  light of the views and recommendations of the Committee. The State party shall  submit its response as soon as possible and within six months.

2. The Committee may invite the State party to submit further information about  any measures the State party has taken in response to its views or recommendations  or implementation of a friendly settlement agreement, if any, including as deemed  appropriate by the Committee, in the State party’s subsequent reports under  article 44 of the Convention, article 12 of the Optional Protocol to the Convention  on the sale of children, child prostitution and child pornography or article 8 of the  Optional Protocol to the Convention on the involvement of children in armed  conflict, where applicable.

Article 12

Inter-State communications

1. A State party to the present Protocol may, at any time, declare that it  recognizes the competence of the Committee to receive and consider  communications in which a State party claims that another State party is not fulfilling its obligations under any of the following instruments to which the State is  a party:

 (a) The Convention;

 (b) The Optional Protocol to the Convention on the sale of children, child  prostitution and child pornography;

 (c) The Optional Protocol to the Convention on the involvement of children  in armed conflict.

2. The Committee shall not receive communications concerning a State party that  has not made such a declaration or communications from a State party that has not  made such a declaration.

3. The Committee shall make available its good offices to the States parties  concerned with a view to a friendly solution of the matter on the basis of the respect  for the obligations set forth in the Convention and the Optional Protocols thereto.

4. A declaration under paragraph 1 of the present article shall be deposited by the  States parties with the Secretary-General of the United Nations, who shall transmit  copies thereof to the other States parties. A declaration may be withdrawn at any  time by notification to the Secretary-General. Such a withdrawal shall not prejudice  the consideration of any matter that is the subject of a communication already  transmitted under the present article; no further communications by any State party  shall be received under the present article after the notification of withdrawal of the  declaration has been received by the Secretary-General, unless the State party  concerned has made a new declaration.

  Part III

Inquiry procedure

Article 13

Inquiry procedure for grave or systematic violations

 1. If the Committee receives reliable information indicating grave or systematic  violations by a State party of rights set forth in the Convention or in the Optional  Protocols thereto on the sale of children, child prostitution and child pornography or  on the involvement of children in armed conflict, the Committee shall invite the  State party to cooperate in the examination of the information and, to this end, to  submit observations without delay with regard to the information concerned.

2. Taking into account any observations that may have been submitted by the  State party concerned, as well as any other reliable information available to it, the  Committee may designate one or more of its members to conduct an inquiry and to  report urgently to the Committee. Where warranted and with the consent of the State  party, the inquiry may include a visit to its territory.

3. Such an inquiry shall be conducted confidentially, and the cooperation of the  State party shall be sought at all stages of the proceedings.

4. After examining the findings of such an inquiry, the Committee shall transmit  without delay these findings to the State party concerned, together with any  comments and recommendations.

5. The State party concerned shall, as soon as possible and within six months of  receiving the findings, comments and recommendations transmitted by the  Committee, submit its observations to the Committee.

6. After such proceedings have been completed with regard to an inquiry made in  accordance with paragraph 2 of the present article, the Committee may, after  consultation with the State party concerned, decide to include a summary account of  the results of the proceedings in its report provided for in article 16 of the present  Protocol.

7. Each State party may, at the time of signature or ratification of the present  Protocol or accession thereto, declare that it does not recognize the competence of  the Committee provided for in the present article in respect of the rights set forth in  some or all of the instruments listed in paragraph .

8. Any State party having made a declaration in accordance with paragraph 7 of  the present article may, at any time, withdraw this declaration by notification to the  Secretary-General of the United Nations.

Article 14

Follow-up to the inquiry procedure

1. The Committee may, if necessary, after the end of the period of six months  referred to in article 13, paragraph 5, invite the State party concerned to inform it of  the measures taken and envisaged in response to an inquiry conducted under  article 13 of the present Protocol.

2. The Committee may invite the State party to submit further information about  any measures that the State party has taken in response to an inquiry conducted  under article 13, including as deemed appropriate by the Committee, in the State  party’s subsequent reports under article 44 of the Convention, article 12 of the  Optional Protocol to the Convention on the sale of children, child prostitution and  child pornography or article 8 of the Optional Protocol to the Convention on the  involvement of children in armed conflict, where applicable.

 Part IV

Final provisions

Article 15

International assistance and cooperation

1. The Committee may transmit, with the consent of the State party concerned, to  United Nations specialized agencies, funds and programmes and other competent  bodies its views or recommendations concerning communications and inquiries that  indicate a need for technical advice or assistance, together with the State party’s  observations and suggestions, if any, on these views or recommendations.

2. The Committee may also bring to the attention of such bodies, with the  consent of the State party concerned, any matter arising out of communications  considered under the present Protocol that may assist them in deciding, each within  its field of competence, on the advisability of international measures likely to  contribute to assisting States parties in achieving progress in the implementation of  the rights recognized in the Convention and/or the Optional Protocols thereto.

Article 16

Report to the General Assembly

 The Committee shall include in its report submitted every two years to the  General Assembly in accordance with article 44, paragraph 5, of the Convention a  summary of its activities under the present Protocol.

Article 17

Dissemination of and information on the Optional Protocol

 Each State party undertakes to make widely known and to disseminate the  present Protocol and to facilitate access to information about the views and  recommendations of the Committee, in particular with regard to matters involving  the State party, by appropriate and active means and in accessible formats to adults  and children alike, including those with disabilities.

Article 18

Signature, ratification and accession

1. The present Protocol is open for signature to any State that has signed, ratified  or acceded to the Convention or either of the first two Optional Protocols thereto.

2. The present Protocol is subject to ratification by any State that has ratified or  acceded to the Convention or either of the first two Optional Protocols thereto.  Instruments of ratification shall be deposited with the Secretary-General of the  United Nations.

3. The present Protocol shall be open to accession by any State that has ratified  or acceded to the Convention or either of the first two Optional Protocols thereto.

4. Accession shall be effected by the deposit of an instrument of accession with  the Secretary-General.

Article 19

Entry into force

1. The present Protocol shall enter into force three months after the deposit of the  tenth instrument of ratification or accession.

2. For each State ratifying the present Protocol or acceding to it after the deposit  of the tenth instrument of ratification or instrument of accession, the present  Protocol shall enter into force three months after the date of the deposit of its own  instrument of ratification or accession.

Article 20

Violations occurring after the entry into force

1. The Committee shall have competence solely in respect of violations by the  State party of any of the rights set forth in the Convention and/or the first two Optional Protocols thereto occurring after the entry into force of the present  Protocol.

2. If a State becomes a party to the present Protocol after its entry into force, the  obligations of that State vis-à-vis the Committee shall relate only to violations of the  rights set forth in the Convention and/or the first two Optional Protocols thereto  occurring after the entry into force of the present Protocol for the State concerned.

Article 21

Amendments

1. Any State party may propose an amendment to the present Protocol and submit  it to the Secretary-General of the United Nations. The Secretary-General shall  communicate any proposed amendments to States parties with a request to be  notified whether they favour a meeting of States parties for the purpose of considering and deciding upon the proposals. In the event that, within four months  of the date of such communication, at least one third of the States parties favour  such a meeting, the Secretary-General shall convene the meeting under the auspices  of the United Nations. Any amendment adopted by a majority of two thirds of the

States parties present and voting shall be submitted by the Secretary-General to the  General Assembly for approval and, thereafter, to all States parties for acceptance.

2. An amendment adopted and approved in accordance with paragraph 1 of the  present article shall enter into force on the thirtieth day after the number of  instruments of acceptance  eposited reaches two thirds of the number of States  parties at the date of adoption of the amendment. Thereafter, the amendment shall  enter into force for any State party on the thirtieth day following the deposit of its  own instrument of acceptance. An amendment shall be binding only on those States  parties that have accepted it.  

Article 22

Denunciation

1. Any State party may denounce the present Protocol at any time by written  notification to the Secretary-General of the United Nations. The denunciation shall  take effect one year after the date of receipt of the notification by the  Secretary-General.

2. Denunciation shall be without prejudice to the continued application of the  provisions of the present Protocol to any communication submitted under articles 5  or 12 or any inquiry initiated under article 13 before the effective date of  denunciation.

Article 23

Depositary and notification by the Secretary-General

1. The Secretary-General of the United Nations shall be the depositary of the  present Protocol.

2. The Secretary-General shall inform all States of:

 (a) Signatures, ratifications and accessions under the present Protocol;

 (b) The date of entry into force of the present Protocol and of any  amendment thereto under article 21;

 (c) Any denunciation under article 22 of the present Protocol.

Article 24

Languages

1. The present Protocol, of which the Arabic, Chinese, English, French, Russian  and Spanish texts are equally authentic, shall be deposited in the archives of the  United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of  the present Protocol to all States.